67 Vt. 514 | Vt. | 1895
The defendants, Edward A. Sowles and Margaret B. Sowles, his wife, filed a motion for an appeal from the decree of the chancellor authorizing a sale of the property involved in this litigation, now in the hands of the receiver. The chancellor denied the motion. It is unnecessary to consider whether the chancellor, should have allowed the appeal. If the decree was one from which an appeal could be taken, the motion brought the case before this court. The solicitors for the orators and for defendant Burton, the parties asking that a sale of the property be decreed, do not now oppose the allowance of the appeal. Such exigencies have arisen that all the parties to the suit desire the opinion of the court upon the right and power of the chancellor to make the decree, authorizing a sale of the property. Hence we have not considered whether the decree was such that the motion brought the case here. By request of the solicitors, representing all parties, we treat the case as properly before this court on an appeal from the chancellor’s decree. The solicitor for the defendants, Sowles, has made some question whether all the parties to the suit were present and represented in this court. One of the orators, the trustee Foster and the defendant O. A. Burton, have deceased, but their legal representatives have now been made parties and are represented by solicitors. Such entrance and appearance • obviates this objection. This
The property is the Tremont House property in the village of St. Albans. The orators claim to have acquired an equitable interest in it through the payment of subscriptions for the fitting up and the establishment of a shirt factory on the property, under a contract and a trust deed of the property from Oscar A. Burton, and Edward A. and Margaret B. Sowles, to Geo. W. Foster, and pray to have their equitable rights therein determined and made a charge upon the property. The bill admits that defendants may have equitable interests therein; the orators pray that these interests may be determined ; that the property may be sold; that the proceeds may be divided among them according to their resepective rights, and until such sale, that it may be placed in the hands of a receiver. The bill was brought in 1887. A receiver was duly appointed and has managed the property from the fall of 1887 until the present time. The rents received have not been sufficient to pay the expenses of the receivership, necessary repairs, insurance and taxes. The receiver’s debt is about two thousand dollars. The building on the lot, and from which the rents have mainly come, was recently destroyed by fire. Probably over two thousand dollars will be received from the insurance of four thousand dollars which was - upon it. The chancellor, upon hearing and personal inspection, decided that it was injudicious and opposed to the interests of the parties, to order it to be repaired or rebuilt. There exists an opportunity to sell the property in its present condition. We think there can be no doubt in regard to the judiciousness of the decree, provided the chancellor had the power
The appellants contend that the court did not have jurisdiction of all the parties necessary to make such a decree. By their answers to the bill, and by the cross-bill of Margaret B. Sowles, it is conceded that the title to this property formerly was in Oscar A. Burton and Hiram Bellows. Mr. Burton when this bill was brought was alive and owned his undivided half of the property. His estate is now represented. Hiram Bellows deceased before the conveyance, heretofore mentioned in trust to George W. Foster. By his will, which was duly probated, he gave the residue of his estate to Susan B. Bellows, his wife. Susan B. Bellows also deceased and by her will, duly probated, gave the residue of her estate to Margaret B. Sowles. Edward A. Sowles was the executor of both wills. The appellants contend that the creditors and legatees under these wills have an interest in the Hiram Bellows undivided half of this property; that they are not made parties to this proceeding, and therefore the chancellor could not decree a sale of the property free and clear of all liens and encumbrances. The property is not specifically devised by either will. Whether Edward A. Sowles, the executor of these wills, so far rep
The prayer of this bill is for a sale, and until such sale can properly be made, that the property be placed in the hands of a receiver. Under such a bill, it is unnecessary for the receiver to file a pedtion praying for the sale of the property. The receivership is created in aid of a bill already filed by the parties interested praying for such sale. The solicitor for the appellants has instanced many cases where the court would not have power to order such a sale. But they do not fall within the admitted facts of this case. Among other things he contends that under the decree distributing the estate of Susan B. Bellows, he was ordered to hold $5000 of the estate in trust for St. Luke’s Church. If so, he is here to protect that interest. But his answer to the bill does not set up that he holds this property as such trustee. He further contends that no sale should be ordered until the rights of the respective parties to the property are
Decree affirmed and cause remanded.